Fighting Corporate Rule

“Money isn’t speech” usually refers to the Supreme Court case Buckley v. Valeo. The phrase comes from a dissenting opinion, which ridiculed the idea, and the phrase stuck, so future court decisions even said “money is speech” referring back to Buckley v. Valeo. But the court’s opinion in that case never said “money is speech”, so it’s not clear exactly what this phrase means.

In Buckley v. Valeo, the court held that limits on campaign spending inevitably restrict speech, and thus are impermissible unless the government has a really good reason. The courts have decided that “Congress shall make no law abridging freedom of speech” doesn’t really mean that. When the government wants to abridge speech, the courts apply what in legal terminology is called “strict scrutiny” which requires two things:

1) The government must have a “compelling interest” (a really good reason).

2) The speech restriction must be “narrowly tailored” to the problem, not restricting speech more than is necessary.

So in this case about 40 years ago, the Supreme Court was considering the Bipartisan Campaign Reform Act, which created the Federal Elections Commission, mandated disclosure of campaign contributions, limited the size of contributions to candidates, created public financing for presidential candidates, limited how much candidates could spend, and limited how much citizens or groups not controlled by the candidate could spend on their own (so-called “independent expenditures”).

Many of these impacted speech, and so the court applied strict scrutiny. The court decided that equalizing influence between citizens was not a good enough reason, but fighting corruption WAS a good enough reason. Because of this the contribution limits were ruled OK.

But when the court looked at spending limits for the candidates, they didn’t think they were needed to prevent corruption, so those limits got thrown out. Then they considered the limits on independent expenditures. (Again, independent expenditures means spending that isn’t from a candidate or coordinated with a candidate, but is meant to affect a candidate election.)

The law in question limited independent expenditures “related” to a candidate for office. The court decided this was vague; in order to regulate speech, the government had to be clear exactly what speech was and was not being restricted. So they construed the law to refer to speech that said “vote for” or “vote against”.

Election speech is part of a spectrum of political speech. A political ad could say “vote against this person”, or it could simply disparage the person without ever explicitly making a recommendation about voting. Or, it could decry some policy, and urge people to contact the politician and tell them to change their stance. Or it could simply criticize a policy that the politician is known to support.

So the court, having construed the law to relate to only “express advocacy” nevertheless recognized that it would be simple for anyone wishing to affect an election to stop just short of that line. And having affected the election, there would still be the same potential to either ingratiate or intimidate candidates. In other words, the limits wouldn’t work to prevent corruption. So the court threw them out.

The court admitted that stopping corruption was a good reason. On the other hand, they said that equalizing influence over government wasn’t a good enough reason. It’s not clear that actually made a difference – if restricting some independent election spending wouldn’t stop corruption, it wouldn’t equalize influence for pretty much the same reason. But by rejecting an “equality rationale” it set a precedent for future cases.

Two lessons from this should be noted:

1) Amendments that focus on just election spending are too narrow – ALL spending meant to influence government must be addressed.

2) Amendment language should create an equality rationale by stating that Congress and the States have a compelling interest in mitigating disparities of influence upon government caused by wealth, or by an explicit provision that implements an equality rationale.